Leonard v. Leonard

• Citation: 174 Iowa 734,156 N.W. 803
• Decision Date: 14 March 1916
• Docket Number: No. 30566.,30566.
• Parties: LEONARD v. LEONARD.
• Court: United States State Supreme Court of Iowa

174 Iowa 734

156 N.W. 803

LEONARD

v.LEONARD.

No. 30566.

Supreme Court of Iowa.

March 14, 1916.

Appeal from District Court, Winneshiek County; A. N. Hobson, Judge.

Action for separate maintenance in which there was a cross-petition praying for a divorce. The cross-petition was dismissed, and decree awarding separate maintenance entered. The defendant appeals. Affirmed.Shea Parnell and E. R. Acres, both of Decorah, for appellant.

Clary & Condon, of New Hampton, and E. W. Cutting, of Decorah, for appellee.

LADD, J.

[1] The parties were married September 14, 1904. They lived together in St. Paul, Minn., until January 1st following, and then moved to Devils Lake, N. D. After remaining there two months, they returned to Lawler, Iowa, where her parents resided. After working there a short time, he went to Chicago, where he pursued a course of studies in veterinary science, and began the practice thereof at Decorah in 1909. There they lived until the latter part of March or fore part of April, 1911, when she, with their boy and girl, 8 and 2 years old, respectively, returned to her parents at Lawler. This suit was begun April 10, 1911, but not heard until February, 1915. The petition alleged cruel and inhuman treatment and adultery as grounds for divorce, but later prayer for separate maintenance only. On September 30, 1913, the defendant filed a cross-petition demanding a divorce on the ground of desertion. The allegations of these pleadings were put in issue, and only two are presented thereby: (1) Whether prior to the departure of his wife defendant was guilty of cruel and inhuman treatment; or (2) of adultery. For, if plaintiff had not good cause for leaving defendant, she must be held to have deserted him, and the necessary period of two years had elapsed. If she had good cause for so doing, leaving him was not desertion. Doolittle v. Doolittle, 78 Iowa, 691, 43 N. W. 616, 6 L. R. A. 187;Kupka v. Kupka, 132 Iowa, 191, 109 N. W. 610.

[2] On the other hand, to justify a decree of separate maintenance, the plaintiff must have had good cause, that is one which would have constituted a ground for divorce, for leaving him. Shors v. Shors, 133 Iowa, 22, 110 N. W. 16. As said, then, to defeat the cross-petition and to maintain the suit for separate maintenance, there must have been such wrong on defendant's part to have as would have sustained a decree of divorce against him.

[3] II. The evidence was insufficient to establish the charge of adultery. Though defendant, in an automobile, rode to Preston, Minn., with an unmarried woman and entered her name and his in the register at a hotel where they had dinner, this was satisfactorily explained by his testimony that her father had employed him to treat a neighbor's cow, and that she had accompanied him to explain the matter and assist in locating such neighbor who had moved to Preston since the services were rendered. If he did ask this woman to accompany him to a show, which he denied, she did not do so. No undue intimacy appears to have existed between them. She did find in his pocket an envelope, postmarked Minneapolis, containing a letter in a woman's handwriting, signed by initials, and addressed “My Dear Doc.,” in which the writer feared that another might lose out, and inquired what they would do without the keys to the courthouse, and saying that when she was in need of money she would let him know, and asking him to come to Minneapolis whenever he could. His explanation that another person had given him the letter to whom he returned it after procuring it from his wife was not at all satisfactory, but all this fell short of proof of guilt. It raises only a suspicion of wrongdoing. There was another suspicious circumstance, and that was the refusal of the physician who attended her shortly before her departure to say what ailed her. As inquiry was made by the patient, no reason appears for not exacting an answer. These suspicious circumstances were insufficient to establish the charge of adultery.

[4] III. Upon examination of the entire record, however, we are inclined to concur with the trial court in its finding that the defendant had been guilty of cruel and inhuman treatment. His wife was frail in body, weighing but 90 pounds, and had had two miscarriages besides bearing the two children. He was above the average in size, weighing about 165 pounds. Aside from his denial her testimony that his conduct towards her was “ugly and disagreeable,” corroborated by witness called by defendant, was undisputed. She testified that he frequently cursed her and called her a g____ d____ bastard; that he often struck her during the last year they were living together; that toward the last he had said to her that he was tired of living with her and wanted her to get a divorce, and that, if she did not get one soon, she would be carried out in a box; that during the last six months he had threatened bodily injury; that shortly before she left he struck her in the presence of Mrs. Marshall, and he was very angry; that she was in ill health at the time; that he struck her across the mouth in the presence of Miss Kock in 1910, cutting her...